Jackson v Mitchell

[2019] WASC 372

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   JACKSON -v- MITCHELL [2019] WASC 372

CORAM:   MCGRATH J

HEARD:   14 OCTOBER 2019

DELIVERED          :   16 OCTOBER 2019

FILE NO/S:   SJA 1087 of 2019

BETWEEN:   ARRON THOMAS JACKSON

Appellant

AND

MARTIN THOMAS MITCHELL

First Respondent

DAVID HOLMBERG

Second Respondent

STEPHEN BRAAM

Third Respondent

ON APPEAL FROM:

For File No:   SJA 1087 of 2019

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE D MACLEAN

File Number             :   BU 5160/2018, BU 6688/2018, BU 6689/2018, BU 6690/2018

Catchwords:

Criminal law – Breach of Conditional Suspended Imprisonment Order – Appeal against sentence – Appeal against immediate term of imprisonment – Totality principle – One transaction rule – Magistrate failed to give credit for time spent in custody – Magistrate failed to take into account early plea of guilty

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 14
Sentencing Act 1995 (WA), s 9AA, s 23, s 84F, s 87

Result:

Extension of time to appeal granted
Leave to appeal granted on ground 1
Appeal allowed on ground 1
Appellant resentenced

Category:    B

Representation:

Counsel:

Appellant	:	Ms K A Gorski
First Respondent	:	Ms K C Cook
Second Respondent	:	Ms K C Cook
Third Respondent	:	Ms K C Cook

Solicitors:

Appellant	:	Legal Aid Western Australia
First Respondent	:	Director of Public Prosecutions (WA)
Second Respondent	:	Director of Public Prosecutions (WA)
Third Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1

Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100

Burrows v The State of Western Australia [2014] WASCA 147

Butler v The State of Western Australia [2012] WASCA 249

Douglas v Ferguson [2012] WASC 207

Dragon v The State of Western Australia [2008] WASCA 252

Gable v Nardini [2010] WASC 321

Goodwin v The State of Western Australia [2017] WASCA 184

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

MJS v The State of Western Australia [2011] WASCA 112

Narkle v Hamilton [2008] WASCA 31

Powell v Tickner [2010] WASCA 224; (2010) 203 A Crim R 421

R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554

R v Holder [1983] 3 NSWLR 245

Roberts v The State of Western Australia [2014] WASCA 239; (2014) 249 A Crim R 154

Roffey v The State of Western Australia [2007] WASCA 246

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Winmar v Clark [2015] WASC 314

Woods v The Queen (1994) 14 WAR 341

MCGRATH J:

1. On 27 February 2019, Mr Jackson was convicted on his own plea of five offences including reckless driving to escape pursuit by police, failing to comply with a direction to stop and no authority to drive.

2. By committing these offences, Mr Jackson was in breach of a conditional suspended imprisonment order (CSIO) imposed on 14 December 2018.  The CSIO was for a term of imprisonment of 8 months suspended for 12 months with conditions.  The CSIO was imposed in respect of six offences, including no authority to drive (suspended), failing to comply with a direction to stop, breaching a family violence restraining order and possessing stolen or unlawfully obtained property.

3. Therefore, on 27 February 2019 the magistrate imposed sentences for the five offences and also resentenced Mr Jackson for the offences for which the CSIO was imposed.

4. The magistrate imposed a total effective sentence of 1 year 8 months' imprisonment commencing on 27 February 2019.  Mr Jackson was made eligible for parole.

5. Mr Jackson now seeks leave to appeal out of time[1] and to appeal on four grounds comprising both express and implied errors. 

   [1] Application for leave to appeal out of time, filed 18 July 2019; Affidavit of Ms Gorski in support of an extension of time in which to appeal, affirmed 17 July 2019.

6. For the following reasons, I have determined that there should be an extension of time in which to appeal, leave to appeal should be granted and the appeal should be allowed on ground 1.

7. In these reasons for decision, I will consider the following:

   (1)the Magistrates Court proceedings;

   (2)the grounds of appeal; and

   (3)an assessment of the merits of the appeal.

The Magistrates Court proceedings

1. On 14 December 2018, Mr Jackson appeared in the Magistrates Court and was sentenced to a CSIO with respect to six offences:

   (1)two charges of no authority to drive (suspended) contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act1974 (WA) (BU 5125/2018 and BU 5160/2018);

   (2)one charge of breaching a family violence restraining order contrary to s 61(1) of the Restraining Orders Act 1977 (WA) (BU 5157/2018);

   (3)two charges of possessing stolen or unlawfully obtained property contrary to s 417(1) of the Criminal Code (WA) (BU 5159/2018 and BU 5164/2018); and

   (4)one charge of failing to comply with a direction to stop in circumstances of aggravation contrary to s 44 of the Road Traffic (Administration) Act2008 (WA) (BU 5163/2018).

2. The offences were alleged to have occurred on four separate dates in September 2018.  The facts are as follows.

3. On 22 September 2018, a violence restraining order was issued against Mr Jackson which prevented him from communicating or attempting to communicate with the victim.  On 27 September 2018, Mr Jackson committed the offence of breaching the violence restraining order by telephoning the victim's landline which was answered by the victim.  Mr Jackson spoke to the victim who told him that he was breaching his restraining order.  Mr Jackson became angry and threatened to kill the victim and another person.

4. Between 15 and 16 September 2018, Mr Jackson committed one offence of possessing stolen or unlawfully obtained property, namely a caravan.  Between 16 and 19 September 2018, Mr Jackson took several photographs of the caravan with his mobile phone and forwarded these messages to various contacts offering to sell the caravan for $1,000.  Mr Jackson's mobile phone was recovered by police and the location of the caravan was identified.

5. On 22 September 2018, Mr Jackson committed one offence of driving without authority.  Mr Jackson was driving in an easterly direction on Coalfields Highway, Roelands when he was stopped by the police and it was ascertained that he was not authorised to drive that class of motor vehicle.  At the time of driving Mr Jackson was subject to a cancelled probationary licence which had been suspended in the Collie Magistrates Court on 12 September 2018 with a revocation date of 13 October 2019.

6. The remaining offences form one set of offending.  On 19 September 2018, Mr Jackson drove a Blue Mitsubishi Pajero bearing stolen registration plates in a northerly direction on Harris River Road, Collie. The police passed Mr Jackson travelling southbound, recognised him and moved to conduct a U-turn, activating emergency lights.  Mr Jackson accelerated away as the police turned around and moved to intercept him and he overtook another vehicle which was also travelling northbound.  Due to the nature of Mr Jackson's driving, the police were forced to disengage.  At the time Mr Jackson had a cancelled provisional licence and was suspended from holding or obtaining a licence on 12 September 2018 until 13 October 2019 by Collie Magistrates Court.

7. On 14 December 2018, Magistrate Coleman imposed a total effective term of imprisonment of 8 months, suspended for 12 months, with programme and supervision requirements to commence on 14 December 2018.

8. On 27 February 2019, Mr Jackson appeared in the Collie Magistrates Court and pleaded guilty to five charges:

   (1)one charge of reckless driving to escape pursuit by police contrary to s 60(1A)(b) of the Road Traffic Act (BU 6688/2018);

   (2)one charge of failing to comply with a direction to stop in circumstances of aggravation contrary to s 44 of the Road Traffic (Administration) Act  (BU 6689/2018);

   (3)one charge of no authority to drive (suspended) contrary to s 49(1)(a) and (3)(c) of the Road Traffic Act (BU 6690/2018);

   (4)one charge of using an unlicensed vehicle on a road contrary to s 4(2) of the Road Traffic (Vehicles) Act 2012 (WA) (BU 6691/2018); and

   (5)one charge of driving, causing or permitting a vehicle with a forged, replica or false plate to be driven on a road contrary to s 36(2)(e) of the Road Traffic (Administration) Act (BU 6692/2018).

9. The facts upon which Mr Jackson was sentenced were in the following terms.[2]

   [2] ts 5 - 6, 27 February 2019.

10. On 19 December 2018, Mr Jackson was driving a motor vehicle in a northward direction on Bussell Highway when he was observed by police to have licence plates which were not registered to the vehicle.  The police conducted a U-turn and attempted to intercept Mr Jackson, activating their lights and sirens.  Mr Jackson accelerated to approximately 140 km/h in a 110 km/h zone whilst weaving in and out of dense traffic and briefly driving on a gravel shoulder in an attempt to evade police.  Mr Jackson then turned into Yeardy Road in Capel and entered a 50 km/h zone on approach to the Iluka mine site.  At this time Mr Jackson was travelling approximately 120 km/h and overtook a truck on two solid white lines.  Mr Jackson subsequently abandoned the vehicle and fled on foot before being apprehended by the police.

11. At the sentencing hearing Mr Jackson's counsel conceded that an immediate term of imprisonment was the appropriate sentencing disposition.[3]  In mitigation, reliance was placed on Mr Jackson's early pleas of guilty and disadvantaged background.[4]

    [3] ts 8, 27 February 2019.

    [4] ts 8, 27 February 2019.

12. The magistrate imposed a total effective term of 1 year 8 months' imprisonment. The magistrate ordered that Mr Jackson be eligible for parole.

13. The table below outlines the offences and the respective individual terms of imprisonment imposed by the magistrate:[5]

    [5] ts sentencing remarks 7, 27 February 2019.

Charge	Date of offence	Term imposed	Cumulative/ concurrent
BU 5125/2018 No authority to drive (s 49 RTA)	22 September 2018	6 months' imprisonment 9 months' driver's licence disqualification	Concurrent Cumulative
BU 5157/2018 Breach FVRO (s 61 ROA)	28 September 2018	1 month imprisonment	Concurrent
BU 5159/2018 Possession of stolen or unlawfully obtained property (s 417 CC)	16 September 2018	4 months' imprisonment	Concurrent
BU 5160/2018 No authority to drive (s 49 RTA)	19 September 2018	8 months' imprisonment 9 months' driver's licence disqualification	Head sentence Cumulative
BU 5163/2018 Failed to stop (s 44 RTAA)	19 September 2018	6 months' imprisonment 2 years' driver's licence disqualification	Concurrent Concurrent
BU 5164/2018 Possession of stolen or unlawfully obtained property (s  417 CC)	19 September 2018	4 months' imprisonment	Concurrent
BU 6688/2018 Reckless driving to escape police pursuit (s 60 RTA)	19 December 2018	6 months' imprisonment Life driver's licence disqualification	Cumulative Concurrent
BU 6689/2018 Failed to stop (s 44 RTAA)	19 December 2018	4 months' imprisonment 2 years' driver's licence disqualification	Cumulative Concurrent
BU 6690/2018 No authority to drive (s 49 RTA)	19 December 2018	2 months' imprisonment 9 months' driver's licence disqualification	Cumulative Cumulative
BU 6691/2018 Used an unlicensed vehicle (s 4(2)A RTVA)	19 December 2018	$100 fine
BU 6692/2018 Drove vehicle with false plate (s 36 RTAA)	19 December 2018	$100 fine
1 year 8 months' immediate imprisonment to commence 27 February 2019, with eligibility for parole

Appeal

1. The grounds of the appeal are in the following terms:[6]

   1.The Learned Magistrate failed to adequately take into account the time the Appellant had spent in custody prior to sentencing.

   2.In imposing cumulative terms for offences BU 6689/2019 to 6690/2019 the Learned Magistrate failed to give appropriate weight to the fact that the offences occurred as part of one transaction.

   3.By imposing cumulative sentences resulting in an aggregate sentence of 20 months the Learned Magistrate infringed the totality principle.

   4.The Learned Magistrate failed to appropriately reduce the sentences imposed to reflect the guilty pleas and did not clearly state what deduction if any was made as required by s 9AA of the Sentencing Act 1995 (WA).

   [6] Appellant's Appeal Notice, filed 18 July 2019; Consent Notice amending grounds of appeal, filed 13 September 2019.

2. This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[7]  An appeal may be made on the basis that the court of summary jurisdiction made an error of law or fact, or of both law and fact, acted without or in excess of jurisdiction, imposed a sentence that was inadequate or excessive or that there has been a miscarriage of justice.[8]

   [7] Criminal Appeals Act 2004 (WA), s 9(1).

   [8] Criminal Appeals Act 2004 (WA), s 8.

3. The court must not grant leave to appeal unless a ground has a reasonable prospect of success.[9]  A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[10]

   [9] Criminal Appeals Act 2004 (WA), s 9(2).

   [10] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Roberts-Smith JJA).

4. The court may dismiss or allow the appeal or set aside or vary the sentence imposed and substitute it with the sentence that should have been imposed.[11] Section 14(2) of the Criminal Appeals Act provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

   [11] Criminal Appeals Act 2004 (WA), s 14.

5. The grounds of appeal do not contend that the individual terms of imprisonment were manifestly excessive. Rather, the grounds contend that the total effective term of imprisonment breached the totality principle. Further, Mr Jackson contends that the magistrate made errors of law, namely by failing to give credit for time spent in custody and by not properly applying s 9AA of the Sentencing Act1995 (WA) to afford a discount for Mr Jackson's pleas of guilty.

6. In considering this appeal, I am mindful that an appellate court must not substitute its own opinion for that of the sentencing magistrate merely because the appellate court would have exercised the sentencing discretion in a manner different from the sentencing magistrate.  There is no single correct sentence and the sentencing magistrate must be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.[12]  The sentencing discretion will not have miscarried if it was open to the magistrate, in the proper exercise of the sentencing discretion, to impose the sentence.

   [12] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27].

Assessment of the merits of the appeal

1. I will first consider grounds 1 and 4, given that each ground raises possible express errors made by the sentencing magistrate.

Ground 1

1. By ground 1, Mr Jackson contends that the magistrate failed to adequately take into account the time that he had spent in custody prior to sentencing in respect of the five offences.

2. Section 87 of the Sentencing Act relevantly provides that time spent in custody in respect of the offence for which the offender is being sentenced may be taken into account if the sentencing court considers that the time should be taken into account. Under s 87 of the Sentencing Act, the court may take that time into account by either reducing the fixed term by an appropriate period or by backdating the commencement of the term.  The manner in which the discretion is exercised will depend upon the individual circumstances of the case.[13]  A court always has a discretion as to whether to take into account time spent in custody.[14]  However, a failure to give full credit for time spent in custody may, depending upon the circumstances, be unfair and unjust.[15]

   [13] Narkle v Hamilton [2008] WASCA 31 [40].

   [14] Narkle v Hamilton [40]; Goodwin v The State of Western Australia [2017] WASCA 184 [26(c)].

   [15] MJS v The State of Western Australia [2011] WASCA 112 [221].

3. By 27 February 2019, Mr Jackson had spent 25 days in custody. The magistrate was not informed by either counsel for Mr Jackson or the prosecutor during the sentencing hearing that Mr Jackson had spent time in custody. Section 23 of the Sentencing Act provides that when an offender is being sentenced for an offence, the prosecutor must inform the court of the period, if any, that the offender has already spent in custody in relation to that offence.

4. After the magistrate delivered his sentencing remarks and imposed sentence, counsel for Mr Jackson raised, for the first time, the issue of time spent in custody.[16]  The issue was raised and determined by his Honour in the following terms:[17]

   HUBER, MS: My apologies, your Honour. One thing I did fail to mention is that Mr Jackson has been in custody for a month in relation to these offences.

   HIS HONOUR: Yes.

   HUBER, MS: And I failed to raise that. I don't think it can be backdated (indistinct) suspended.

   HIS HONOUR: I don't think it can. Yes. I didn't propose to backdate. The term will commence from today and - -

   [16] ts 9, 27 February 2019.

   [17] ts 9, 27 February 2019.

5. In my view, the time Mr Jackson spent in custody was not taken into account for the reason that his Honour determined that the term of imprisonment imposed for the breach of the CSIO could not be backdated in accordance with s 84F of the Sentencing Act.[18]  The court is unable to take into account time spent in custody when resentencing for breach of a CSIO by backdating the term of imprisonment imposed.[19]  However, it was open to his Honour to give Mr Jackson credit for the time he had spent in custody by reducing the terms that had been suspended, reducing the terms imposed for the new offences or backdating the terms of imprisonment for the new offences. 

   [18] ts 9, 27 February 2019.

   [19] Dragon v The State of Western Australia [2008] WASCA 252 [48] - [53].

6. Rather, his Honour determined that no credit could be given for the time spent in custody for the reason that the suspended term of imprisonment could not be backdated.  In doing so, his Honour erred in law.

7. In my opinion, Mr Jackson was entitled to have his time in custody taken into account in one of the ways provided by s 87 of the Sentencing Act.  The failure to give credit for the time Mr Jackson spent in custody was, in the circumstances, unjust.  Therefore, leave to appeal is granted in respect of ground 1 and the ground is upheld.

Ground 4

1. By ground 4, Mr Jackson contends that the magistrate erred in law by failing to reduce the sentence to reflect his guilty pleas, and further, that his Honour did not clearly state what deduction, if any, was made as required by s 9AA of the Sentencing Act.

2. Section 9AA(2) of the Sentencing Act provides that if a person pleads guilty to a charge for an offence, the court may reduce the head sentence for the offence in order to recognise the benefits to the State, and to any victim of or witness to the offence, resulting from the plea.

3. The term 'head sentence' is defined to mean the sentence that a court would have imposed for the offence if the offender had been found guilty after a plea of not guilty and there were no mitigating factors.[20]

   [20] Sentencing Act 1995 (WA), s 9AA(1).

4. The reduction must not be more than 25% and the maximum reduction will only apply if the offender pleaded guilty, or indicated that he would plead guilty, at the first reasonable opportunity.[21]

   [21] Sentencing Act 1995 (WA), s 9AA(4).

1. Section 9AA(5) of the Sentencing Act provides that if a court reduces the head sentence for an offence under subsection 2, the court must state that fact and the extent of the reduction in open court.

2. The purpose and proper construction of s 9AA was considered in Abraham v The State of Western Australia.[22] The underlying purpose of s 9AA(5) is to increase the transparency of the sentencing process.[23]

   [22] Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1.

   [23] Abraham v The State of Western Australia [50] (Buss JA).

3. The failure to state that a sentence has been reduced and to quantify the reduction does not necessarily mean that a reduction has not been made and the sentencing discretion has miscarried.[24]  However, as in Burrows v The State of Western Australia, to avoid the conclusion that a material error has occurred, it would be expected that the sentencing court should make reference to the mitigating effect of the guilty plea and it should be apparent from the sentencing remarks that a reduction has been made.  The failure to refer to the effect of the plea of guilty will ordinarily be an indication that the sentencing court has overlooked the granting of the discount.[25]  In such circumstances, the failure to properly consider and grant the discount is a material error because it constitutes a failure to take into account a material consideration.[26]

   [24] Burrows v The State of Western Australia [2014] WASCA 147 [32].

   [25] Roberts v The State of Western Australia [2014] WASCA 239; (2014) 249 A Crim R 154 [48]; Winmar v Clark [2015] WASC 314 [26].

   [26] Roberts v The State of Western Australia [47].

4. Mr Jackson entered pleas of guilty at the first reasonable opportunity and was therefore entitled to a reduction pursuant to s 9AA of the Sentencing Act.  The magistrate stated that the 'sole mitigating factor' is Mr Jackson's pleas of guilty[27] and that the pleas were entered at 'the very first opportunity'.[28] Accordingly, Mr Jackson was entitled to a discount of 25% under s 9AA of the Sentencing Act.

   [27] ts sentencing remarks 5, 27 February 2019.

   [28] ts sentencing remarks 6, 27 February 2019.

5. I do not accept Mr Jackson's contention that the magistrate erred in the manner in which s 9AA of the Sentencing Act was applied for the following reasons.

6. The charge of aggravated reckless driving to escape police carries a maximum penalty of 5 years' imprisonment (summary conviction penalty of 2 years' imprisonment) and a mandatory minimum penalty of 6 months' imprisonment, pursuant to s 60B(4) and (5)(a) of the Road Traffic Act.  Therefore Parliament has set minimum and maximum penalties which operate as the floor and ceiling within which the judicial officer's sentencing discretion must operate.[29]  His Honour correctly observed that his sentencing discretion was so constrained and that in the circumstances 'the only scope for the discretion is to move upwards and to impose a term of imprisonment greater than six months'.[30]

   [29] Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100 [54].

   [30] ts sentencing remarks 4, 27 February 2019.

7. Accordingly, his Honour imposed a term of imprisonment that was the statutory minimum of 6 months' imprisonment. Mr Jackson correctly observes that the magistrate failed to state the extent of the discount given for the plea of guilty. However, s 60B(6) of the Road Traffic Act provides that the minimum sentence specified in s 60B(5)(a) applies 'despite the Sentencing Act 1995 Part 5'. His Honour expressly stated that the offence should attract the minimum sentence by reference to the seriousness of the offence and the fact that Mr Jackson had entered a plea of guilty and was accordingly entitled to a discount for that plea.[31]  The reduction to be given, and thereby the sentence imposed, was limited by the floor of the mandatory minimum sentence.

   [31] ts sentencing remarks 5, 27 February 2019.

8. Turning to the other two charges, namely failing to comply with a direction to stop in circumstances of aggravation (BU 6689/2018) and no authority to drive (BU 6690/2018), his Honour expressly stated that each plea was entered at the first reasonable opportunity.[32]  His Honour did not state the percentage figure of the discount afforded.  It was necessary to do so.  His Honour did, however, state that a discount was given and the extent of the reduction. 

   [32] ts sentencing remarks 5, 7, 27 February 2019.

9. With respect to the offence of failing to comply with a direction to stop (BU 6689/2018), his Honour stated a term of imprisonment of 4 months was imposed and that the term was reduced from a term of imprisonment of 6 months to take into account the plea of guilty.[33]  Counsel for Mr Jackson at the hearing of the appeal submitted that there was ambiguity in his Honour's sentencing remarks regarding the extent to which the reduction was made for reason of the plea of guilty.  This is because his Honour, after stating the discount for the plea, subsequently stated that the term was reduced to 4 months having regard to the early plea and 'to properly place weight and to pay regard to the principle of totality'.[34] 

   [33] ts sentencing remarks 7, 27 February 2019.

   [34] ts sentencing remarks 7, 27 February 2019.

10. On a fair reading of the sentencing remarks, I do not accept that his Honour reduced that individual term for totality purposes.  Rather, the term of imprisonment was reduced to 4 months substantially for the reason of the plea of guilty.  His Honour, at various junctures in his sentencing remarks, made references to the totality principle, reflecting on the need to ensure that the total effective sentence did not breach that principle.  I am of the view that his Honour did grant a 25% discount which was encompassed within the two month reduction.  To the extent that the reduction from 6 months' to 4 months' imprisonment exceeded the 25% statutory discount, that further discount is explicable for reasons of totality.

11. In respect of the offence of driving without authority, his Honour stated that he reduced the term of imprisonment imposed from 6 months to 4 months 'to, again, acknowledge the fact that you've entered a plea of guilty'.[35]  By doing so, his Honour granted a reduction that amounts to a discount of 33%, being in excess of the 25% statutory maximum discount.  Accordingly, Mr Jackson has no cause to complain.

    [35] ts sentencing remarks 7, 27 February 2019.

12. Therefore, ground 4 has not been made out and leave to appeal is not granted in respect of ground 4.

Ground 2

1. By ground 2, Mr Jackson contends that the magistrate failed to give appropriate weight to the fact that the offences occurred as part of one transaction.

2. Mr Jackson submits that the charges of reckless driving to escape pursuit (BU 6688/2018), failing to comply with a direction to stop (BU 6689/2018) and no authority to drive (BU 6690/2018) relate to one incident of driving on 19 December 2019 and that the offences of failing to stop and reckless driving to escape pursuit share significant overlap in the elements constituting the offences.[36]  Accordingly, Mr Jackson contends that he should not be punished twice for what is essentially the same criminality, arising from one transaction.[37]

   [36] Appellant's Outline of Submissions, filed 13 September 2019 [8] - [12].

   [37] Appellant's Outline of Submissions, filed 13 September 2019 [14].

3. The one transaction rule is said to apply 'when a number of offences "arise out of substantially the same act, circumstances or series of occurrences" ... or when there is "one multi-faceted course of criminal conduct" ... or if they are considered to be "manifestations of the one criminal enterprise, transaction or episode''.'[38]  However, the Court of Appeal observed in Butler v The State of Western Australia [2012] WASCA 249 at [53] that:[39]

   As this court has pointed out on many occasions, the one transaction rule is merely a rule of thumb designed to assist judges to ensure that the total sentence imposed for offences which occur close together in time or in a spree is proportionate to the offender's overall criminality. It will sometimes be the case that cumulative sentences are justified to properly reflect an offender's overall criminality: Lesay v The State of WesternAustralia [2011] WASCA 154 [21].

   [38] R v Faithfull [2004] WASCA 39; (2004) 142 A Crim R 554 [26] (McLure J, with whom Malcolm CJ and Wheeler J agreed).

   [39] Butler v The State of Western Australia [2012] WASCA 249 [53].

4. Accordingly, it is not a principle of sentencing that concurrent terms must be imposed for multiple offences which constitute one transaction or a continuing episode. There may be circumstances in which wholly concurrent terms of imprisonment will not reflect the total criminality involved, even though the offending occurred during a single episode.  

5. His Honour correctly observed that the 'punishment ought be appropriately tempered – that is, reduced' for the reason 'that they all arise from part of the same event, and ought further be tempered – that is, reduced – to pay regard to the principle of totality'.[40]  Accordingly, I find that his Honour did not err in law by making the term of imprisonment imposed for the failing to stop offence cumulative on the term of imprisonment imposed for the reckless driving to escape offence.  Ultimately, the issue is whether the total effective sentence breached the totality principle, which is the subject of ground 3.

   [40] ts sentencing remarks 2, 27 February 2019.

6. Accordingly, ground 2 has not been made out and leave to appeal on that ground is refused.

Ground 3

1. By ground 3, Mr Jackson contends that the total effective sentence of 1 year 8 months' imprisonment breached the totality principle.  This ground asserts implied error.  Mr Jackson does not contend that the individual terms of imprisonment are manifestly excessive as to length or for the reason that the terms of imprisonment should have been suspended, but rather, that the length of the total effective term of imprisonment infringed the totality principle.[41]

   [41] Appellant's Outline of Submissions, filed 13 September 2019 [24].

2. The practical effect of the totality principle is ordinarily to arrive at an aggregate that is less than that which would be arrived at by simply adding up all the terms that are appropriate for each of the individual sentences.[42]  The total effective sentence must not be unreasonable or plainly unjust. 

   [42] R v Holder [1983] 3 NSWLR 245, 260 (Street J).

3. The first limb of the totality principle requires that the total effective sentence, when an offender is being sentenced for a number of offences, bears a proper relationship to the overall criminality involved in the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally, all relevant sentencing factors and total effective sentences imposed in comparable cases.[43]

   [43] Roffey v The State of Western Australia [2007] WASCA 246 [24]; Woods v The Queen (1994) 14 WAR 341.

4. I now turn to consider the factors relevant in determining whether the length of the term of imprisonment imposed breached the totality principle.

5. Turning to Mr Jackson's personal circumstances, he was sentenced as a 28 year old who has four children but has separated from the mother of the children.[44]  Mr Jackson's mother died when he was 4 years of age which caused childhood trauma.[45]  Mr Jackson has been using methylamphetamine since he was 13 years of age.[46]  Mr Jackson has an employment history.[47]  Mr Jackson has a significant criminal record with convictions for offences including no authority to drive, dishonesty offences, aggravated burglary, drug offences, criminal damage, stealing motor vehicles and breach of court orders.

   [44] ts 7, 27 February 2019.

   [45] ts 7, 27 February 2019.

   [46] ts 7, 27 February 2019.

   [47] ts 7, 27 February 2019.

6. The magistrate correctly determined that the only factor in mitigation was Mr Jackson's plea of guilty which was entered at the first reasonable opportunity.

7. Mr Jackson's offending on 19 December 2018 was serious.  The offences were committed whilst Mr Jackson was subject to a CSIO which had been imposed for similar offending on 14 December 2018.  This is an aggravating factor. 

8. The offences the subject of the CSIO were serious.  The magistrate imposed terms of imprisonment in respect of the CSIO offences but ordered that each term be served wholly concurrent.  At the hearing of the appeal, counsel for Mr Jackson stated that he had served 2 months' imprisonment prior to being sentenced for the offences for which the CSIO was imposed.  That is so.  However, her Honour Magistrate Coleman expressly took the time Mr Jackson had spent in custody into account when imposing the CSIO.[48]

   [48] ts 4, 14 December 2018.

9. The offence of driving whilst under suspension is serious and carries with it a predominant sentencing objective of personal deterrence for the safety of the public.[49]  Mr Jackson is a recalcitrant.  On 12 September 2018, Mr Jackson was disqualified from holding a driver's licence.[50]  On 14 September 2018, Mr Jackson committed a second or subsequent offence of driving whilst disqualified for which the CSIO was imposed.[51]  On 19 December 2018, Mr Jackson committed the further offence of driving whilst disqualified.[52]  On 27 February 2019, Mr Jackson's conviction for driving whilst disqualified was his fifteenth offence of driving with no authority by either not complying with his learner's permit, fines suspension or court imposed disqualifications.[53]

   [49] Gable v Nardini [2010] WASC 321 [33].

   [50] Respondent's Outline of Submissions, filed 23 September 2019 [57].

   [51] Respondent's Outline of Submissions, filed 23 September 2019 [57].

   [52] Respondent's Outline of Submissions, filed 23 September 2019 [58].

   [53] Respondent's Outline of Submissions, filed 23 September 2019 [59].

10. In respect of the aggravated reckless driving offence, there is no tariff.[54]  Mr Jackson's offending was serious, marked by driving at the speed of 140 km/h in a 110 km/h zone, weaving in and out of traffic and overtaking other vehicles whilst endeavouring to evade police.  The magistrate imposed the mandatory minimum term of imprisonment for the offence.

    [54] Douglas v Ferguson [2012] WASC 207 [23] (Hall J).

11. I am of the view that the sentence of 1 year 8 months' immediate imprisonment does not breach the totality principle.  In all the circumstances it was open to his Honour to impose a term of 1 year 8 months' imprisonment.  That term provides both adequate personal deterrence and punishment having regard to the seriousness of the offending and the factors personal to Mr Jackson.

Conclusion

1. I have determined that the magistrate did err in law by erroneously finding that credit could not be given in respect of the time Mr Jackson had spent in custody and thereby failed to exercise his discretion.  Therefore, I must determine whether there has been a substantial miscarriage of justice.[55]  In Powell v Tickner, Buss JA considered that a substantial miscarriage of justice will not have occurred where a different sentence should not have been imposed even though it has been found that a sentencing magistrate made an express error of law.[56]  The respondent submits that given an erroneously generous discount was provided in respect of the offence of driving with no authority, it therefore cannot be said that a different sentence ought to have been imposed. 

   [55] Criminal Appeals Act 2004 (WA), s 14(2).

   [56] Powell v Tickner [2010] WASCA 224; (2010) 203 A Crim R 421 [116].

2. I have carefully reflected on this submission.  I am of the view that I should not offset the further period of incarceration that Mr Jackson must serve which arises from the magistrate making an error of law with part of the period by which the term of imprisonment was reduced for the early plea.  His Honour imposed sentence after carefully considering the discount for the pleas of guilty and totality.  That term was structured on the erroneous basis that the time spent in custody could not be taken into account.  I am of the view that a different sentence should be imposed.

3. Mr Jackson should be given credit for the time that he has spent in custody.  Accordingly, I reduce the term of imprisonment in respect of the no authority to drive charge from 8 months to 7 months' imprisonment.  The terms of imprisonment that are imposed on the other charges will remain the same as those which were imposed by the magistrate.  Therefore, the total effective sentence is 1 year 7 months' imprisonment.

4. Consequently, I make the following orders:

   (1)An extension of time in which to appeal is granted.

   (2)Leave to appeal is granted on ground 1 and refused on the other grounds.

   (3)The appeal is allowed on ground 1.

   (4)The term of imprisonment of 8 months imposed on the no authority to drive charge (BU 5160/2018) is set aside and in lieu thereof a term of imprisonment of 7 months is imposed.

5. The other sentences imposed by the magistrate are otherwise affirmed.  Therefore, the sentences that are imposed on the other charges are in the same terms as imposed by the magistrate.

   I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

   DH
   Research Associate/Orderly to the Honourable Justice McGrath

   16 OCTOBER 2019